IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 14, 2010
ANTHONY CAPPS, PETITIONER,
MIKE MCDONALD, WARDEN,
The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2009 conviction on seventeen counts of committing a lewd and lascivious act on a child under the age of fourteen. Respondents have moved to dismiss the petition for failure to exhaust state remedies. Petitioner has not filed an opposition.
The exhaustion of state court remedies is a prerequisite to the
granting of a petition for writ of habeas corpus. 28 U.S.C. §
2254(b)(1). If exhaustion is to be waived, it must be waived
explicitly by respondent's counsel. 28 U.S.C. § 2254(b)(3).*fn1
A waiver of exhaustion, thus, may not be implied or inferred.
A petitioner satisfies the exhaustion requirement by providing the highest state court with a full and fair opportunity to
consider all claims before presenting them to the federal court.
Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768
F.2d 1083, 1086 (9th Cir.), cert. denied, 478 U.S. 1021 (1986).
After reviewing the petition for habeas corpus, the court finds that petitioner has failed to exhaust state court remedies. The four claims raised in his first amended petition have not been presented to the California Supreme Court. Further, there is no allegation that state court remedies are no longer available to petitioner. Accordingly, the petition should be dismissed without prejudice.*fn2
IT IS HEREBY RECOMMENDED that:
1. Respondent's November 18, 2010 motion to dismiss (dkt. no. 15) be granted.
2. Petitioner's application for a writ of habeas corpus be dismissed for failure to exhaust state remedies.
These findings and recommendations will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Findings and Recommendations." If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after service of the objections. Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).